R v Oldham Metropolitan Borough Council, ex parte Garlick ; R v Bexley London Borough Council, ex parte Bentum; R v Tower Hamlets London Borough Council, ex parte Begum
| Jurisdiction | England & Wales |
| Judge | Lord Slynn of Hadley,Lord Ackner,Lord Bridge of Harwich,Lord Woolf,Lord Griffiths |
| Judgment Date | 18 March 1993 |
| Court | House of Lords |
| Year | 1993 |
| Date | 1993 |
[1993] UKHL J0318-1
House of Lords
Lord Griffiths
Lord Bridge of Harwich
Lord Ackner
Lord Slynn of Hadley
Lord Woolf
My Lords,
Your Lordships heard these three appeals together because they all concern the nature of the duties owed by local housing authorities to homeless persons under Part III of the Housing Act 1985 which re-enacts the provisions first contained in the Housing (Homeless Persons) Act 1977.
The first two appeals raise the question of what if any duty is owed under the Act to dependent children of four years of age who are living with their parents.
I take the facts of the first two appeals from the judgment of Henry J.:
"The facts of the two cases are these. In the first, that involving the London Borough of Bexley, Mr. and Mrs. 'B' are political refugees from Ghana. They had been here for a number of years with their youngest child, the applicant. They had purchased their own property. They mortgaged it and re-mortgaged it. They got into financial difficulties and were unable to keep up the mortgage payments. The property was re-possessed and on 15th August 1990 they presented to Bexley as homeless, applying for accommodation under section 62 of the Act.
On 2nd February 1991 their three other children, born respectively in 1966, 1974, 1980, together with the young daughter of the eldest then just three months old, arrived in the United Kingdom from Ghana. On 4th February 1991 their housing application was amended to add those recently arrived persons. In February 1991 the family was placed by the respondents in temporary accommodation while their claim was considered.
On 23rd September 1991 Bexley found that Mr. and Mrs. 'B' were homeless, that they were considered to be in priority need, but they were considered to have become homeless intentionally on the basis that the loss of their accommodation was caused by a deliberate omission to make the mortgage repayments due. Accordingly they gave Mr. and Mrs. 'B' 28 days to find alternative accommodation.
There was no legal challenge to that decision. Instead on 17th October 1991 a fresh application was made, physically by Mr. 'B' but in the name of his youngest son who was then aged 4. By letter of 24th October that application was not accepted as an application but, in the alternative if it were to be considered to be a valid application, it was rejected on the basis that the four year old applicant was not considered to be in priority need. It is that decision that the applicants here apply to quash. Meanwhile the council have been providing accommodation pending the outcome of this hearing.
The other application concerns the Oldham Metropolitan Borough Council. Again the applicant was four at the date of his application. In January 1991 his mother was evicted for failure to pay rent. She applied to the local housing authority claiming homelessness. After investigation the local authority found her to be homeless, found her to have priority need but to have become homeless intentionally due to her failure to make any payment towards her rent. Again she was temporarily accommodated for a short period under the provisions of the Act and before that period had expired on 19th March 1991 an application for accommodation was made on behalf of the applicant.
On 4th April 1991 the respondent refused to entertain the application on the basis that it was a 'transparent device to get round the provisions of the Housing Act'. It is to quash that decision that the second set of proceedings are brought."
Henry J. and the Court of Appeal dismissed these applications and in my opinion they were right to do so.
It is of the first importance to understand the nature of the duty imposed upon local housing authorities by Parliament. It is not a duty to take the homeless off the streets and to place them physically in accommodation. The duty is to give them and their families the first priority in the housing queue. The duty is expressed in section 65(2) as a duty to "secure that accommodation becomes available for his occupation". It is a duty to offer a homeless person who applies to them for assistance suitable permanent accommodation to house him and his family, see section 75. It is then up to the applicant to decide whether or not he will accept the accommodation. The local housing authority cannot force the applicant to accept it, but they will have discharged their duty under the Act by finding and offering suitable permanent accommodation.
The persons to whom this duty is owed are those who are homeless and in priority need and have not disqualified themselves by becoming homeless intentionally. Those in priority need are classified in section 59(1):
"The following have a priority need for accommodation-
(a) a pregnant woman or a person with whom a pregnant woman resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster."
Dependent children are not amongst those classified as in priority need. This is not surprising. Dependent children depend on their parents or those looking after them to decide where they are to live and the offer of accommodation can only sensibly be made to those in charge of them. There is no definition of a dependent child in the Act but the Homelessness Code of Guidance for Local Authorities (3rd ed.) (1991), to which local authorities must have regard for guidance (see section 71) suggests in paragraph 6.3 that authorities should normally include as dependent all children under 16 and all children aged 16-18 who are in, or about to begin, full time education or training or who for other reasons are unable to support themselves and who live at home. This seems to me to be sensible guidance and likely to result in families being housed together until the children are reasonably mature. There will obviously be the case from time to time when a child leaves home under the age of 16 and ceases to be dependent on the parents or those with whom he or she was living and such a child may be vulnerable and in priority need by virtue of section 59(1)(c). See Kelly v. Monklands District Council 1986 S.L.T. 169. But however that may be, it cannot possibly be argued that a healthy four year old living with parents is other than a dependent child. Such a child is in my opinion owed no duty under this Act for it is the intention of the Act that the child's accommodation will be provided by the parents or those looking after him and it is to those people that the offer of accommodation must be made not to the dependent child.
I cannot accept the argument that extreme youth is a "special reason" making the child vulnerable and thus giving it a priority need under section 59(1)(c). "Old age" is mentioned as a cause of vulnerability but "young age" is not. The reason of course is that already stated. Parliament has provided for dependent children by giving a priority right to accommodation to their parents or those looking after them. Nor can I accept the argument that if a dependent child suffers from some disability it thereby acquires an independent priority right to accommodation. A healthy four year old is just as vulnerable as a disabled four year old from a housing point of view; neither is capable of looking after himself let alone deciding whether to accept an offer of accommodation. I am satisfied that section 59(1)(c) was not intended to confer any rights upon dependent children.
It is also to be observed that the Act imposes a duty on the authority to give written advice to the applicant and makes it a criminal offence for an applicant not to notify an authority of a change in his circumstances (see sections 64 and 74). This is all part of a pattern that supports the view that the intention of this Act was to create a duty to offer accommodation to those homeless persons in priority need who can decide whether or not to accept the offer and that this does not include dependent children.
If a family has lost its right to priority treatment through intentional homelessness the parent cannot achieve the same result through the back door by an application in the name of a dependent child; if he could it would mean that the disqualification of intentional homelessness had no application to families with dependent children. If this had been the intention of Parliament it would surely have said so.
For these reasons I would dismiss the first two appeals. I wish however to point out that there are other provisions of our social welfare legislation that provide for the accommodation and care of children and of the duty of cooperation between authorities in the discharge of their duties. Section 20(1) of the Children's Act 1989 provides:
"Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of-
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and...
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